(1)

The European Green Deal set out in the communication of the Commission of 11 December 2019 is Europe’s sustainable growth strategy and aims to transform the Union into a fair and prosperous society, with a modern, competitive, climate-neutral and circular economy and toxic-free environment. It sets the ambitious objective of ensuring that the Union becomes the first climate neutral continent by 2050. It recognises the advantages of investing in the Union’s competitive sustainability by building a fairer, greener and more digital Europe. Products have a pivotal role to play in this green transition. Underlining that current production processes and consumption patterns remain too linear and dependent on a throughput of new materials extracted, traded and processed into goods that are finally disposed of as waste or emissions, the European Green Deal emphasises the urgent need to transition to a circular economy model and stresses the significant progress that remains to be made. It also identifies energy efficiency as a priority for the decarbonisation of the energy sector and for reaching the climate objectives in 2030 and 2050.

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To accelerate the transition to a circular economy model, the Commission designed a future-oriented agenda in its communication of 11 March 2020 on a new Circular Economy Action Plan for a cleaner and more competitive Europe (CEAP), with the objective of making the regulatory framework fit for a sustainable future. The CEAP underlines that, ‘for citizens, the circular economy will provide high-quality, functional and safe products, which are efficient and affordable, last longer and are designed for reuse, repair, and high-quality recycling’. As set out in CEAP, there is currently no comprehensive set of requirements to ensure that all products placed on the Union market become increasingly sustainable and stand the test of circularity. In particular, product design does not sufficiently promote sustainability over the whole life cycle. As a result, products are being replaced frequently, involving significant energy and resource use in order to produce and distribute new products and dispose of old ones. It is still too difficult for economic operators and citizens to make sustainable choices in relation to products, given that relevant information and affordable options to do so are lacking. This leads to missed opportunities for sustainability and for value-retaining operations, limited demand for secondary materials and obstacles to the adoption of circular business models.

(3)

A fully functioning internal market for sustainable products is a pre-requisite for the establishment of a circular economy in the Union. Common ecodesign requirements at Union level would enable the development, deployment and scaling-up of new circular economy business models throughout the internal market. Such measures would also alleviate the burden on companies and provide industry and consumers with access to reliable and clear data, thereby allowing for more sustainable choices to be made.

(4)

The communication of the Commission of 10 March 2020 on a New Industrial Strategy for Europe sets out the Union’s overarching ambition to foster a ‘twin transition’ to climate neutrality and digital leadership. It echoes the European Green Deal in pointing to the leading role that Europe’s industry must play in that, by reducing its carbon footprint and material footprint and embedding circularity across the economy, and underlines the need to move away from traditional models, and revolutionise the way we design, make, use and dispose of products, as well as the need for a secure supply of raw materials. Recycling and the use of secondary raw materials will help reduce the Union's dependency. The communication of the Commission of 5 May 2021 on Updating the 2020 New Industrial Strategy: Building a stronger Single Market for Europe’s recovery reinforces the main messages of the 2020 Strategy and focuses on the lessons from the COVID-19 crisis, including the need to foster resilience.

(5)

In the absence of Union law, diverging national approaches in improving the environmental sustainability of products have already emerged, ranging from information requirements concerning the duration of software compatibility of electronic devices to reporting obligations on handling unsold durable goods. This is an indication that further national efforts to achieve the aims pursued by this Regulation would likely lead to further fragmentation of the internal market. Therefore, in order to contribute to the functioning of the internal market while ensuring a high level of environmental protection, an ambitious regulatory framework to progressively introduce ecodesign requirements for products is needed. This Regulation will establish such a framework, by making the ecodesign approach initially set out in Directive 2009/125/EC of the European Parliament and of the Council (3) applicable to the broadest possible range of products.

(6)

This Regulation will support production and consumption patterns that are aligned with the Union’s overall sustainability targets, including climate, environmental, energy, resource-use and biodiversity targets, while staying within planetary boundaries, by establishing a legislative framework which contributes to enabling products fit for a climate-neutral, resource-efficient and circular economy, reducing waste and ensuring that the performance of frontrunners in sustainability progressively becomes the norm. It should provide for the setting of new ecodesign requirements to improve product durability, reliability, repairability, upgradability, reusability and recyclability, improve possibilities for the refurbishment and maintenance of products, address the presence of hazardous chemicals in products, increase the energy and resource efficiency of products, including with regard to the possibility of recovery of strategic and critical raw materials, reduce their expected generation of waste and increase the recycled content in products, while ensuring their performance and safety, enabling remanufacturing and high-quality recycling and reducing carbon and environmental footprints.

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Ecodesign requirements should also address practices associated with premature obsolescence. Such practices have an overall negative impact on the environment, in the form of increased waste and use of energy and materials, which can be reduced through ecodesign requirements while contributing to sustainable consumption.

(8)

The European Parliament, in its resolution of 25 November 2020‘Towards a more sustainable single market for business and consumers’ (4), welcomed promoting durable products which are easier to repair, reuse and recycle. In its resolution of 10 February 2021 on the New Circular Economy Action Plan (5), the European Parliament underlined that sustainable, circular, safe and non-toxic products and materials should become the norm in the Union market and not the exception and should be seen as the default choice, which is attractive, affordable and accessible for all consumers. The European Parliament also called for Union binding targets to significantly reduce Union material and consumption footprints. It considered that the transition to a circular economy can provide solutions to address the current environmental challenges and the economic crisis brought about by the COVID-19 pandemic. The Council, in its conclusions on ‘Making the Recovery Circular and Green’ adopted on 11 December 2020, also welcomed the Commission’s intention to submit legislative proposals as part of a comprehensive and integrated sustainable product policy framework that promotes climate neutrality, energy and resource efficiency and a non-toxic circular economy, protects public health and biodiversity, and empowers and protects consumers and public buyers.

(9)

This Regulation will contribute to achieving the Union’s climate and energy objectives. In line with the goals set out in the Paris Agreement, adopted on 12 December 2015 under the United Nations Framework Convention on Climate Change (6) (the ‘Paris Agreement’), and approved by the Union on 5 October 2016 (7), Regulation (EU) 2021/1119 of the European Parliament and of the Council (8) establishes a binding Union domestic reduction commitment of net greenhouse gas emissions of at least 55 % by 2030 and enshrines in legislation the target of economy-wide climate neutrality by 2050. In 2021, the Commission adopted the Fit for 55 Package to make the Union’s climate and energy policies fit for achieving these objectives. To do so, in line with the energy efficiency first principle enshrined in Directive (EU) 2018/2002 of the European Parliament and of the Council (9), energy efficiency improvements need to be significantly stepped up, to around 36 % in terms of final energy consumption by 2030. Product requirements established under this Regulation will play a significant role in the reaching of that target by substantially decreasing products’ energy footprint. Those energy efficiency requirements will also reduce consumer vulnerability to energy price increases. As recognised by the Paris Agreement, improving the sustainability of consumption and production will also play an important role in addressing climate change.

(10)

This Regulation will also contribute to achieving the Union’s wider environmental objectives. The 8th Environment Action Programme established by Decision (EU) 2022/591 of the European Parliament and of the Council (10) enshrines in a legal framework the Union’s objective of staying within the planetary boundaries and identifies enabling conditions to achieve priority objectives, which include the transition to a non--toxic circular economy. The European Green Deal also calls for the Union to better monitor, report, prevent and remedy air, water, soil and consumer products pollution. This means that chemicals, materials and products have to be safe and sustainable by design and during their life cycle, leading to non-toxic material cycles as set out in the communication of the Commission of 12 May 2021 on an EU Action Plan: ‘Towards Zero Pollution for Air, Water and Soil’ and the communication of the Commission of 14 October 2020 on a Chemicals Strategy for Sustainability — Towards a Toxic-Free Environment, which calls for the zero pollution ambition in production and consumption to be embraced. In addition, both the European Green Deal and the CEAP recognise that the Union internal market provides a critical mass that is able to influence global standards on product sustainability and product design. This Regulation will therefore play a significant role towards achieving several targets established under the Sustainable Development Goals of the United Nations 2030 Agenda for Sustainable Development, both inside and outside the Union, in particular targets under Sustainable Development Goal 12 (‘Responsible consumption and production’).

(11)

Directive 2009/125/EC established a framework for the setting of ecodesign requirements for energy-related products. Together with Regulation (EU) 2017/1369 of the European Parliament and of the Council (11), it has significantly reduced Union primary energy demand for products and it is estimated that those savings will continue to increase. Implementing measures adopted under Directive 2009/125/EC have also included requirements concerning circularity aspects, such as durability, repairability and recyclability. At the same time, instruments such as the EU Ecolabel, introduced by Regulation (EC) No 66/2010 of the European Parliament and of the Council (12), or the EU green public procurement criteria set out in the communication of the Commission of 16 July 2008 on Public procurement for a better environment are broader in scope but have a reduced impact due to the limitations of voluntary approaches.

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Directive 2009/125/EC has been generally successful in fostering the energy efficiency and some circularity aspects of energy-related products, and its ecodesign approach has the potential to progressively address the sustainability of all products. To deliver on European Green Deal commitments, this approach should be extended to other product groups and systematically address key aspects for increasing the environmental sustainability of products with binding requirements. By ensuring that only products that meet those requirements are placed on the Union market, this Regulation will not only improve the free movement of such products by avoiding national disparities, but also reduce the negative life cycle environmental impacts of products for which such requirements are set.

(13)

In order to create an effective and future-proof harmonised regulatory framework, it is necessary to provide for the setting of ecodesign requirements for all physical goods placed on the market or put into service, including components, such as tyres, and intermediate products. Digital content that is an integral part of a physical product is to be included in the scope. This should allow the Commission to take into account the broadest range of products possible when prioritising the setting of ecodesign requirements and thereby maximise their effectiveness. Where needed, specific exemptions should be provided for when setting ecodesign requirements, in particular where ecodesign requirements are not necessary to contribute to the environmental sustainability of specific products, or, for example, for products with a particular use, products with a particular purpose that could not be fulfilled when complying with ecodesign requirements or products produced in very small quantities, or taking into account the specificity and size of the product’s market. In addition, this Regulation should not apply to products for which it is already clear that ecodesign requirements would not be suitable or where other frameworks provide for the setting of such requirements. This should be the case for food and feed as defined in Regulation (EC) No 178/2002 of the European Parliament and of the Council (13), for medicinal products as defined in Directive 2001/83/EC of the European Parliament and of the Council (14), for veterinary medicinal products as defined in Regulation (EU) 2019/6 of the European Parliament and of the Council (15), for living plants, animals and micro-organisms, for products of human origin, for products of plants and animals relating directly to their future reproduction, and for vehicles as referred to in Article 2(1) of Regulation (EU) No 167/2013 of the European Parliament and of the Council (16), in Article 2(1) of Regulation (EU) No 168/2013 of the European Parliament and of the Council (17) and in Article 2(1) of Regulation (EU) 2018/858 of the European Parliament and of the Council (18), in respect of those product aspects for which requirements are set under sector-specific Union legislative acts applicable to those vehicles. Those vehicles are subject to several product-specific requirements and different harmonised type-approval systems under legal Union acts, such as Directives 2000/53/EC (19) and 2005/64/EC (20) of the European Parliament and of the Council and Regulation (EU) 2018/858. Additional harmonised requirements for vehicles should be limited to aspects that are not currently addressed, for example environmental requirements for tyres. E-bikes and e-scooters should, however, not be excluded from the scope of this Regulation.

(14)

Directive (EU) 2024/1275 of the European Parliament and of the Council (21) requires Member States to set minimum energy performance requirements for building elements that form part of the building envelope and system requirements in respect of overall energy performance, the proper installation and the appropriate dimensioning, adjustment and control of technical building systems in new or existing buildings. It is consistent with the objectives of this Regulation that those minimum energy performance requirements may in certain circumstances limit the installation of energy-related products which comply with this Regulation and its delegated acts, provided that such requirements do not constitute an unjustifiable market barrier.

(15)

In order to improve the environmental sustainability of products and to ensure the free movement of products in the internal market, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission to supplement this Regulation by setting ecodesign requirements. Those ecodesign requirements should as a rule apply to specific product groups, such as household washing machines and household washer-dryers. In order to maximise the effectiveness of ecodesign requirements and to efficiently improve the environmental sustainability of products, it should also be possible to set one or more horizontal ecodesign requirements for a wider range of product groups, such as electronic appliances or textiles. Horizontal ecodesign requirements should be established where the technical similarities of product groups allow their environmental sustainability to be improved based on the same requirements. It is important that horizontal requirements be developed in particular concerning durability and repairability.

(16)

Ecodesign requirements should include, as appropriate, performance requirements or information requirements, or both. Those requirements should be used to improve product aspects relevant for environmental sustainability, such as durability, reusability, repairability, energy efficiency, recyclability, and carbon and environmental footprints. Ecodesign requirements should be transparent, objective, proportionate and in compliance with international trade rules.

(17)

The second-hand sector plays an important role in promoting sustainable production and consumption, including in the development of new circular business models, and contributes to prolonging the lifetime of a product and avoiding it becoming waste. Second-hand products, in particular products that undergo refurbishment or repair, originating from within the Union are not new products and they can circulate within the internal market without needing to comply with delegated acts setting ecodesign requirements that have entered into force after their placing on the market. However, remanufactured products are considered new products and they will be subject to ecodesign requirements if they fall within the scope of a delegated act.

(18)

Once a delegated act setting ecodesign requirements is adopted by the Commission for a given product group, Member States should, in order to ensure the functioning of the internal market, no longer be allowed to set national performance requirements based on product parameters covered by such performance requirements laid down in that delegated act, and no longer be allowed to set national information requirements based on product parameters covered by such information requirements laid down in that delegated act. In order to improve the environmental sustainability of products and to ensure their free movement within the internal market, the Commission should be empowered to establish that no ecodesign requirements in the form of performance requirements or in the form of information requirements are necessary in relation to a specific product parameter if a requirement related to that specific product parameter would have a negative impact on the ecodesign requirements considered for the product group.

(19)

When setting ecodesign requirements, the Commission should take into account the nature and purpose of the products concerned as well as the characteristics of the relevant markets. For example, defence equipment needs to be able to operate under specific and sometimes harsh conditions, and that needs to be considered when setting ecodesign requirements. Certain information on defence equipment should not be disclosed and should be protected. Ecodesign requirements should thus not be set for products with the sole purpose of serving defence or national security. It is important that for other military or sensitive equipment ecodesign requirements take into account the security needs and the characteristics of the defence market, as defined in Directive 2009/81/EC of the European Parliament and of the Council (22). Similarly, the space industry is strategic for Europe and for its technological non-dependence. As space technologies operate in extreme conditions, any ecodesign requirements for space products should balance sustainability considerations with resilience and expected performance. Furthermore, for medical devices as defined in Article 2(1) of Regulation (EU) 2017/745 of the European Parliament and of the Council (23) and in vitro diagnostic medical devices as defined in Article 2(2) of Regulation (EU) 2017/746 of the European Parliament and of the Council (24), the Commission should take into account the need to not negatively affect the health and safety of patients and users. The Commission should furthermore, when assessing the characteristics of the market and preparing ecodesign requirements, strive to consider national characteristics, such as the different climate conditions in Member States and practices and technologies used in Member States with proven beneficial environmental effects.

(20)

To avoid a regulatory burden, consistency should be ensured between this Regulation and requirements set in or pursuant to other Union law, especially concerning products, chemicals, packaging and waste. However, the existence of empowerments under other Union law to set requirements with the same or similar effects as requirements under this Regulation should not limit the empowerments included in this Regulation, unless specified in this Regulation.

(21)

When preparing ecodesign requirements, the Commission should take into account a number of elements, namely Union priorities, relevant Union and national law, relevant international agreements as well as self-regulation measures and relevant standards. The Commission should also take into account the priorities for the climate, the environment, energy efficiency, resource efficiency and security, including a non-toxic circular economy, and other related Union priorities and targets. It is important to pay attention to the objectives of the 8th Environment Action Programme set out in Decision (EU) 2022/591, including that, by 2050 at the latest, people live well, within the planetary boundaries in a well-being economy, the ‘do no harm’ principle and the waste hierarchy as defined in Directive 2008/98/EC of the European Parliament and of the Council (25), as well as the Union’s commitments to protect and restore biodiversity as expressed also in the communication of the Commission of 20 May 2020 on an EU Biodiversity Strategy for 2030 — Bringing nature back into our lives and the Kunming-Montreal Global Biodiversity Framework adopted by the Fifteenth meeting of the Conference of the Parties (COP-15) to the Convention on Biological Diversity of the United Nations.

(22)

Delegated acts setting ecodesign requirements should, as was the case for implementing measures under Directive 2009/125/EC, undergo a dedicated impact assessment and stakeholder consultation, and should be drawn up in line with the Commission’s Better Regulation guidelines, and include an assessment of the international dimension and impacts on third countries. The Commission should base its impact assessment on the best available evidence and take due consideration of all aspects of the life cycle of the product. When preparing ecodesign requirements, the Commission should use a scientific approach and also take into consideration relevant technical information used as a basis for or derived from, in particular, Regulation (EC) No 66/2010, Directive 2010/75/EU of the European Parliament and of the Council (26), technical screening criteria adopted pursuant to Regulation (EU) 2020/852 of the European Parliament and of the Council (27) and EU green public procurement criteria.

(23)

In order to take into account the diversity of products, the Commission should select methods to assess the setting of the ecodesign requirements and, as appropriate, develop them further. Such methods should be based on the nature of the product, its most relevant aspects and its impacts over its life cycle. In doing so, the Commission should take account of its experience in assessing the setting of requirements under Directive 2009/125/EC and the continuing efforts to develop and improve science-based assessment tools, including the update of the methodology for ecodesign of energy-related products, and the Product Environmental Footprint method set out in Commission Recommendation (EU) 2021/2279 (28), including as regards temporary storage of carbon, as well as the development of standards by international and European standardisation organisations, including on the material efficiency of energy-related products. Building on those tools and using dedicated studies when needed, the Commission should further reinforce circularity aspects, such as durability, repairability, including repairability scoring, recyclability, reusability, identification of chemicals hindering reuse and recycling, in the assessment of products, in accordance with a life cycle approach with a view to preparing ecodesign requirements, and should develop new methods or tools where appropriate. Information related to environmental life cycle indicators, such as the carbon footprint, should be calculated taking into consideration internationally established methods that are already implemented in Union law. It is also important to take into consideration scientific methods recommended by international and European standardisation organisations. In particular, when it comes to the modelling of the energy used in manufacturing processes, particular consideration should be given to modelling of the energy mix that would also take into account issues such as power purchase agreements, guarantees of origin and own electricity production. New approaches might also be needed for the preparation of mandatory public procurement criteria and for bans on the destruction of unsold consumer products.

(24)

Performance requirements should relate to a selected product parameter relevant to the targeted product aspect for which potential for improving environmental sustainability has been identified. Such requirements could include minimum or maximum levels of performance in relation to the product parameter, non-quantitative requirements that aim to improve performance in relation to the product parameter, or requirements related to a product’s functional performance to ensure that the selected performance requirements do not negatively impact the ability of the product to perform the function for which it was designed and marketed. Regarding minimum or maximum levels, they could for example take the form of a limit on energy consumption in the use phase or on the quantities of a given material incorporated in the product, a requirement for minimum quantities of recycled content, or a limit on a specific environmental impact category or on an aggregation of all relevant environmental impacts. An example of a non-quantitative requirement is the prohibition of a specific technical solution that is detrimental to product repairability. Performance requirements will be used to ensure the removal of the worst performing products from the market and to gradually move to the best performing products where that is necessary to contribute to the environmental sustainability objectives of this Regulation. Performance requirements could also concern resource use, including requirements related to the usage of renewable resources or materials with bio-based content in the product and address the release of nano- and microplastics. In envisaging a combination of requirements, the Commission should assess them as a whole and identify the combination of requirements that delivers the highest environmental sustainability benefits.

(25)

In order to ensure consistency, performance requirements should complement the implementation of Union law on waste. While requirements for placing on the market packaging as a final product are laid down under European Parliament and Council Directive 94/62/EC (29), this Regulation could complement that Directive by setting product-based requirements that focus on the packaging of specific products when placed on the market. Where relevant, such complementary requirements should contribute in particular to minimising the amount of packaging used, in turn contributing to the prevention of waste generation in the Union.

(26)

Chemical safety is a recognised element of product sustainability. It is based on the intrinsic hazards of chemicals to health or the environment in combination with specific or generic exposure, and is addressed by Union law on chemicals, such as Regulations (EC) No 1935/2004 (30), (EC) No 1907/2006 (31), (EC) No 1272/2008 (32), (EC) No 1223/2009 (33), (EU) 2017/745 and (EU) 2019/1021 (34) and Directive 2009/48/EC (35) of the European Parliament and of the Council. This Regulation should not provide for the restriction of substances based primarily on chemical safety, as done under other Union law. Union law on chemicals already provides for the restriction of substances or mixtures related to safety or risk, where needed. However, the setting of performance requirements should also, where appropriate, reduce significant risks to human health or the environment. Information requirements concerning the presence of substances of concern will also contribute to reducing the exposure to chemicals, adding to the risk management measures provided for by other Union law. Similarly, this Regulation should not enable the restriction of substances for reasons related to food safety. Union law on chemicals and food, however, does not provide for impacts on sustainability that are unrelated to chemical safety or food safety to be addressed through restrictions on certain substances. To overcome that limitation, this Regulation should provide, under certain conditions, for the restriction of substances present in products or used in their manufacturing processes which negatively affect products’ sustainability. This Regulation should complement, where necessary, but not duplicate or replace restrictions on substances covered by Directive 2011/65/EU of the European Parliament and of the Council (36), which has as its objective the protection of human health and the environment, including the environmentally sound recovery and disposal of waste from electrical and electronic equipment.

(27)

The Commission, when setting performance requirements, should be able to introduce requirements to prevent certain substances from being included in a product. The identification of such substances should be part of the Commission’s assessment prior to the setting of ecodesign requirements for a specific product group and the Commission should in that assessment, for instance, take into account whether a substance makes the reuse or recycling of a product more complicated or negatively affects the properties of the recycled material, for example through its colour or smell. Where a substance has already been established as being a substance that hinders circularity for one product group, this can be an indication that it also hinders circularity for other product groups. The identification and possible restriction of a substance should also trigger an information requirement.

(28)

To improve the environmental sustainability of products, information requirements should relate to a selected product parameter relevant to a product aspect, such as the product’s environmental footprint, carbon footprint and durability. They should require the manufacturer to make available information on the product’s performance in relation to a selected product parameter or other information that may influence the way the product is handled by parties other than the manufacturer in order to improve performance in relation to such a parameter. Such information requirements should be set either in addition to, or instead of, performance requirements concerning the same product parameter, as appropriate. It is important that the Commission duly justify its decision to only lay down information requirements instead of performance requirements. Where a delegated act includes information requirements, it should indicate the method for making the required information available and easily accessible, such as its inclusion on a free-access website, in a digital product passport or on a product label. Essential information relating to the health, safety and rights of end users should always be provided to consumers by physical means and be accessible through a data carrier included on the product. Information requirements are necessary to lead to the behavioural change needed to ensure that the environmental sustainability objectives of this Regulation are achieved. Information relevant for making an informed purchasing decision should be provided to the consumer prior to the purchase of the product. By providing appropriate means for purchasers and public authorities to compare products on the basis of their environmental sustainability, information requirements are expected to drive consumers and public authorities towards more sustainable choices. Information requirements should also contribute to improved collection rates by Member States for relevant product groups, in particular for those for which a significant reuse and refurbishment potential exists, such as mobile phones for which the collection rate in Member States does not exceed 5 %, for example by facilitating information on take-back schemes through financial incentives and deposit-refund systems, data privacy guarantees, databases of drop-off points, and personalised end-of-life information, via a digital product passport, on the value of the product and on best practices about proper disposal.

(29)

Where delegated acts include information requirements, they could, in addition, determine classes of performance in relation to one or more relevant product parameters, in order to facilitate comparison between products. Classes of performance should enable differentiation of products based on their relative sustainability and could be used by both consumers and public authorities. As such, they are intended to drive the market towards more sustainable products.

(30)

Information requirements concerning repairability and durability play a key role in enabling consumers to engage in sustainable consumption. This Regulation should enable the establishment of repairability or durability scores for products where such scores are deemed appropriate for the purpose of providing environmental benefits and clearer information for consumers. In order to allow consumers to effectively assess and compare products, it is important that the format, content and display of such repairability and durability scores include easy-to-understand language and pictograms and that the repairability score be based on a harmonised methodology specified for the product or product group and which aggregates parameters, such as the availability and price of spare parts, the ease of disassembly and the availability of tools, into a single score.

(31)

Information on the presence of substances of concern in products is a key element to identify and promote products that are sustainable. The chemical composition of products largely determines their functionalities and impacts, as well as the possibility for their reuse or for recovery once they become waste. The Commission’s communication of 14 October 2020‘Chemicals Strategy for Sustainability Towards a Toxic-Free Environment’ calls for the presence of substances of concern in products to be minimised, and the availability of information on chemical content and safe use to be ensured, by introducing information requirements and tracking the presence of substances of concern throughout the life cycle of materials and products. Regulation (EC) No 1272/2008 and other existing chemicals law such as Regulation (EC) No 1223/2009 already ensure communication on hazards to health or the environment posed by certain substances of concern on their own or in a mixture. Users of substances and mixtures should also be provided with pertinent information. Furthermore, users of products other than substances or mixtures, and managers of waste from such products, should also receive relevant information, including information primarily related to the hazards of chemicals to health or the environment. Therefore, this Regulation should provide for the setting of requirements related to the tracking and communication of sustainability information, including the presence of substances of concern in products throughout their life cycle, also with a view to the decontamination and recovery of such products when they become waste. Such a framework should aim to progressively cover the substances of concern in all products listed in working plans to be adopted by the Commission. Such requirements concerning the tracking of substances of concern should be included by default where an information requirement is to be set under this Regulation, except when such an information requirement is part of horizontal ecodesign requirements. In order to take into account the criteria to be met by ecodesign requirements, and in particular to avoid a disproportionate administrative burden for economic operators, the Commission should be able, as appropriate for the product group concerned, to set thresholds on the concentration of substances in the product or relevant components triggering the tracking requirement, set differentiated application deadlines and, in duly justified cases, provide derogations from the tracking requirement. When setting the detail of information required and thresholds, the Commission should take into consideration existing information requirements and thresholds under Union law, in particular under Regulations (EC) No 1907/2006 and (EC) No 1272/2008, and other sectoral product legislation. A derogation based on technical feasibility could apply in cases where the presence of a substance in a product cannot be verified with the current available technologies.

(32)

The information requirements set under this Regulation should include the requirement to make a digital product passport available. The digital product passport is an important tool for making information available to actors along the entire value chain and the availability of a digital product passport is expected to significantly enhance end-to-end traceability of a product throughout its value chain. Among other things, the digital product passport is expected to help customers make informed choices by improving their access to relevant information, allow economic operators, namely manufacturers, authorised representatives, importers, distributors, dealers and fulfilment service providers, and other value chain actors, such as customers, professional repairers, independent operators, refurbishers, remanufacturers, recyclers, market surveillance and customs authorities, civil society organisations, researchers, trade unions, and the Commission, or any organisation acting on their behalf, to access, introduce or update relevant data, and enable competent national authorities to perform their duties, without endangering the protection of confidential business information. To that end, it is important that the digital product passport be user-friendly and that the data contained therein be accurate, complete and up to date. The digital product passport should, where necessary, be complemented by non-digital forms of transmitting information, such as information in the product manual or on a label. In addition, it should be possible for the digital product passport to be used for providing information concerning the relevant product group pursuant to other Union law.

(33)

To take account of the nature of the product and its market, the information to be included in the digital product passport should be carefully examined on a case-by-case basis when preparing product-specific rules. To optimise access to the resulting data while also protecting intellectual property rights, the digital product passport needs to be designed and implemented in a manner that allows differentiated access to the data in the digital product passport depending on the type of data and the typology of stakeholders. Similarly, to avoid costs for companies and for the public that are disproportionate to the wider benefits, the digital product passport should be specific to the item, batch or product model, depending on, for example, the complexity of the value chain, the size, nature or impacts of the products considered. The impact assessments carried out when preparing the delegated acts setting ecodesign requirements should analyse the costs and benefits of setting information requirements through digital product passports at model, batch or item level. The term ‘model’ usually refers to a version of a product of which all units share the same technical characteristics relevant for the ecodesign requirements and the same model identifier, the term ‘batch’ usually refers to a subset of a specific model composed of all products produced in a specific manufacturing plant at a specific moment in time and the term ‘item’ usually refers to a single unit of a model. The impact assessment should also, to the extent that the digital product passport relies on standards which are not free of charge, consider whether such reliance is appropriate and how disproportionate costs for micro, small and medium-sized enterprises (SMEs) can be avoided.

(34)

Given that other Union law sets information requirements for products and sets up systems to make information available to economic operators and customers, the Commission should consider linking information requirements under this Regulation to those other requirements, such as the obligation to provide safety data sheets for substances and mixtures in accordance with Regulation (EC) No 1907/2006. Where feasible, the Commission should also link the digital product passport to existing Union databases and tools such as the European Product Registry for Energy Labelling (EPREL) or the database for information on Substances of Concern In articles, as such or in complex objects (Products) (SCIP).

(35)

In order to not unnecessarily delay the setting of ecodesign requirements other than those concerning the digital product passport or to ensure that digital product passports can be effectively implemented, the Commission should be allowed to exempt product groups from the digital product passport requirements where technical specifications are not available in relation to the essential requirements for the technical design and operation of the digital product passport. Similarly, in order to prevent an unnecessary administrative burden for economic operators, the Commission should be allowed to exempt product groups from the digital product passport requirements in the event that other Union law already includes a system for the digital provision of product information allowing actors along the value chain to access relevant product information and facilitating the verification of product compliance by competent national authorities. Those exemptions should be periodically reviewed taking into account further availability of technical specifications.

(36)

Unique identification of products is a fundamental element as regards enabling traceability across the supply chain. Therefore, the digital product passport should be linked to a unique product identifier. In addition, where appropriate, the digital product passport should be linked to a unique operator identifier and a unique facility identifier which would allow the actors and manufacturing facilities related to that product to be traced. In order to ensure interoperability, the data carrier, the unique operator identifier and the unique facility identifier enabling traceability should be issued in accordance with internationally recognised standards. The power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to amend this Regulation by replacing or adding standards in accordance with which the data carrier, the unique operator identifier and the unique facility identifier can be issued, in light of technical or scientific progress. This should ensure that the data contained in the digital product passport can be recorded and transmitted by all the economic operators, as well as guarantee the compatibility of unique identifiers with external components such as scanning devices. Moreover, the data should be transferable through an open interoperable data exchange network without vendor lock-in.

(37)

Digitalised information about the product and its life cycle or, where applicable, its passport should be easily accessible by scanning a data carrier, such as a watermark or a quick response (QR) code. Where possible, the data carrier should be on the product itself to ensure the data remain accessible throughout its life cycle. However, derogations should be possible depending on the nature, size or use of the products concerned.

(38)

To ensure access to the digital product passport for the period specified in delegated acts, including after an insolvency, a liquidation or a cessation of activity in the Union, the economic operator placing the product on the market should make available a back-up copy of the digital product passport through a digital product passport service provider that is an independent third party.

(39)

To ensure the effective roll-out of the digital product passport, its technical design, data requirements and operation should adhere to a set of essential technical requirements that provide a basis for the consistent deployment of the digital product passport across sectors. Technical specifications should be established to ensure the effective implementation of those essential requirements, either in the form of harmonised standards for which the references have been published in the Official Journal of the European Union or, as a fall-back option, common specifications adopted by the Commission via implementing acts. The technical design should ensure that the digital product passport carries data in a secure way, respecting privacy rules. It is necessary that the digital product passport be developed in an open dialogue with international partners, in order to take account of their views when developing technical specifications and to ensure that they help remove trade barriers for greener products with extended life cycles and circularity, lowering costs for sustainable investments, marketing, compliance, and supporting innovation. In order to allow for their effective implementation, it is important that technical specifications and requirements related to traceability across the value chain be developed, to the extent possible, on the basis of a consensual approach and of the involvement, buy-in, and effective collaboration of a diverse set of actors, including standardisation bodies, industry associations, start-ups, consumer organisations, experts, non-governmental organisations (NGOs) and international partners, including developing economies.

(40)

The power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to supplement this Regulation by clearly defining the role and responsibilities of the different actors, such as issuing agencies and service providers, that will be involved in the creation, authentication, processing and storing of data, and possibly the withdrawal of important elements of the digital product passport, such as unique identifiers and data carriers. The Commission could, to that extent, carry out an impact assessment to investigate the appropriateness of developing a certification scheme for digital product passport service providers.

(41)

To ensure that the digital product passport is flexible, agile and market-driven and evolves in line with business models, markets and innovation, it should be based on a decentralised data system and be set up and managed by economic operators. However, for enforcement and monitoring purposes, it is necessary that competent national authorities and the Commission have direct access to a record of all unique identifiers linked to products placed on the market or put into service. To that end, the Commission should set up and manage a digital product passport registry to store such data (the ‘registry’). Where needed to further facilitate enforcement, the Commission should, where appropriate, specify other data included in the digital product passport that need to be stored in the registry.

(42)

The Commission should set up and maintain a user-friendly and publicly available web portal where stakeholders, such as customers, economic operators and other relevant actors, have access to data included in the digital product passports and the possibility of searching for and comparing data included in those passports in line with their respective access rights specified in the delegated acts setting ecodesign requirements. The web portal should provide links to data already stored by the economic operator in its decentralised digital product passport.

(43)

Any processing of personal data pursuant to this Regulation is to comply with the applicable rules on the protection of personal data. Processing of personal data by the competent national authorities within Member States is to be carried out in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council (37) with particular attention being paid to the principles of data protection by design and by default. Any processing of personal data by the Commission, in particular those stored in the registry, is to be carried out in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (38). Personal data of customers should not be stored in the digital product passport.

(44)

Effective enforcement in relation to products placed on the Union market, whether domestically produced or imported, is essential for achieving the aims of this Regulation. Therefore, once the Commission has set up the registry, customs authorities should have direct access to it via the EU Single Window Environment for Customs established by Regulation (EU) 2022/2399 of the European Parliament and of the Council (39). The role of customs authorities should be to verify as a minimum that the unique registration identifier of a product which is required to be provided or made available to them and the relevant commodity code correspond to the data that are stored in the registry. This would allow customs authorities to verify that a digital product passport for imported products exists. Where appropriate, the Commission should lay down in its implementing act on the registry the necessary obligations for economic operators to keep the data stored in the registry up to date.

(45)

The data included in the digital product passport are intended to allow customs authorities to enhance and facilitate risk management and enable the controls at the border to be better targeted. Therefore, customs authorities should be able to retrieve and use the data included in the digital product passport and the related registry for carrying out their tasks in accordance with Union law, including for risk management in accordance with Regulation (EU) No 952/2013 of the European Parliament and of the Council (40).

(46)

To drive consumers towards sustainable choices, labels should, when required by the delegated acts adopted pursuant to this Regulation, provide clear and easily understandable information allowing for the effective comparison of products, for instance by indicating classes of performance. Specifically for consumers, physical labels can be an additional source of information at the place of sale. They should provide a quick visual basis for consumers to distinguish between products based on their performance in relation to a specific product parameter or a set of product parameters. They should, where appropriate, also make it possible to access additional information by bearing specific references such as website addresses, dynamic QR codes, links to online labels or any appropriate consumer-oriented means. The Commission should set out in the relevant delegated act the most effective way of displaying such labels, including in the case of online distance selling, taking into account the implications for customers and economic operators and the characteristics of the products concerned. The Commission should be able to also require the label to be printed on the packaging of the product.

(47)

Regulation (EU) 2017/1369, which sets a framework on energy labelling, applies, in parallel to this Regulation, to energy-related products. Energy labels are a successful instrument as regards providing the appropriate information to consumers for energy-related products. Classes of performance determined under this Regulation should, where appropriate, be incorporated in the energy label as supplementary information as provided for in Article 16 of Regulation (EU) 2017/1369. In cases where relevant information on a product’s performance in relation to a product parameter cannot be included as supplementary information in the energy label, the Commission should, where appropriate, be able to require the establishment of a label in accordance with this Regulation instead of the energy label, in which the relevant information of the energy label can be so incorporated.

(48)

Consumers need to be protected from misleading information that could hamper their choices for more sustainable products. For that reason, it should be prohibited to place on the market or put into service products that bear or are accompanied by labels which are likely to mislead or confuse customers by mimicking the labels provided for in this Regulation, or that are accompanied by any other information which is likely to mislead or confuse customers with regard to the labels provided for in this Regulation. The EU Ecolabel and other nationally or regionally officially recognised EN ISO 14024 type I ecolabels are not to be considered misleading or confusing labels, provided that the criteria developed under those labelling schemes are at least as strict as the ecodesign requirements.

(49)

To deliver in the most efficient way on the European Green Deal’s objectives and to address the most impactful products first, the Commission should carry out a prioritisation of products to be regulated under this Regulation and requirements that will apply to them. Based on the process followed for prioritisation under Directive 2009/125/EC, the Commission should adopt a working plan covering at least three years and laying down a list of product groups for which it intends to adopt delegated acts, as well as the product aspects for which it intends to adopt delegated acts of horizontal application. The Commission should base its prioritisation on a set of criteria pertaining in particular to the delegated acts’ potential contribution to achieving the Union’s climate, environmental and energy objectives, and their potential for the improvement of the product aspects selected, without leading to disproportionate costs for the public and economic operators. Member States and stakeholders should also be consulted through an Ecodesign Forum to be established by the Commission. Due to the complementarities between this Regulation and Regulation (EU) 2017/1369 for energy-related products, the timelines for the working plan under this Regulation and the working plan provided for under Article 15 of Regulation (EU) 2017/1369 should be aligned. When prioritising intermediate products, the Commission should also take into account the consequences for final products that are made from such intermediate products. Considering their importance for meeting the Union’s energy objectives, the working plan should include an adequate share of actions related to energy-related products. Vehicles as referred to in Article 2(1) of Regulation (EU) No 167/2013, in Article 2(1) of Regulation (EU) No 168/2013 and in Article 2(1) of Regulation (EU) 2018/858 are already subject to comprehensive provisions, including specific environmental requirements, and should therefore not be prioritised for the setting of ecodesign requirements. For the first working plan, the Commission should prioritise iron, steel, aluminium, textiles, in particular garments and footwear, furniture, including mattresses, tyres, detergents, paints, lubricants, chemicals, information and communication technology products and other electronics, and energy-related products for which ecodesign requirements are to be set for the first time or for which existing measures adopted pursuant to Directive 2009/125/EC are to be reviewed under this Regulation. The Commission should provide an appropriate justification in the event that it decides to modify that list.

(50)

The cement industry, as one of the most energy-, material- and carbon- intensive sectors, is currently responsible for around 7 % of global and 4 % of Union CO2 emissions, which makes it a key sector for alignment with the Paris agreement and the Union’s climate objectives as quickly as possible. While construction products, including cement, are to be covered under a Regulation of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products (the ‘construction products Regulation’), they remain under the scope of this Regulation. To avoid a lack of product requirements urgently needed to reach our climate and environmental objectives, in the absence of adequate performance requirements and information requirements for such products under the construction products Regulation, the Commission should adopt delegated acts setting ecodesign requirements for cement not earlier than 31 December 2028 and not later than 1 January 2030.

(51)

In addressing construction products, this Regulation should set requirements for final products only where the obligations created by the construction products Regulation and its implementation are unlikely to sufficiently achieve the environmental sustainability objectives pursued by this Regulation. In addition, when formulating working plans, the Commission should take into account that, in continuation of current practice, the construction products Regulation, gives prevalence to sustainability requirements set under this Regulation for energy-related products that are also construction products. This should be the case for instance for heaters, boilers, heat pumps, water and space heating appliances, fans, cooling and ventilating systems and photovoltaic products, excluding building-integrated photovoltaic panels. The construction products Regulation can apply to those products in a complementary manner where needed, mainly in relation to safety aspects, also taking account of other Union law on products such as on gas appliances, low voltage equipment and machinery.

(52)

In order to ensure that proper consultation of all interested parties takes place, the Commission should establish an Ecodesign Forum, composed of experts designated by Member States and other interested parties, such as representatives of industry, including SMEs and craft industry, social enterprises, trade unions, traders, retailers, importers, consumer and environmental organisations, actors involved in circular economy activities, European standardisation organisations, as well as researchers. Within the Ecodesign Forum, the Commission should establish a Member States Expert Group, which should contribute to preparing new ecodesign requirements, to assessing self-regulation measures, to the exchange of information and best practices between Member States on measures to enhance compliance with this Regulation, such as education and information campaigns or provision of support to SMEs, as well as to setting priorities.

(53)

In order to encourage self-regulation as a valid alternative to regulatory approaches, this Regulation should, building on Directive 2009/125/EC, include the possibility for industry to submit self-regulation measures for products which are not included in the working plan. Self-regulation measures should be aligned with the objectives of this Regulation. The Commission should assess the self-regulation measures proposed by industry, along with the information and evidence submitted by the signatories, in light of, inter alia, the international trade commitments of the Union and the need to ensure consistency with Union law. It is also appropriate, for instance in view of relevant market or technological developments within the product group concerned, that the Commission be able to request a revised version of the self-regulation measure whenever considered necessary. Once a self-regulation measure is listed in an implementing act containing a list of self-regulation measures which fulfil the criteria set in this Regulation, there is a legitimate expectation for economic operators that the Commission will first consider the content of such a measure before proposing a delegated act setting ecodesign requirements for the specific product group concerned. However, the Commission should be able to adopt ecodesign requirements also applying to some or all of the products covered by a recognised self-regulation measure for the product aspects not addressed by that self-regulation measure. Where the Commission considers that a self-regulation measure no longer fulfils the criteria set in this Regulation, it should remove it from that implementing act. Consequently, it should be possible to set ecodesign requirements for the product groups previously addressed by that self-regulation measure.

(54)

SMEs could greatly benefit from an increase in the demand for sustainable products but could also face costs and difficulties due to some of the requirements. The Commission should, when preparing ecodesign requirements, take into account their impact on SMEs, in particular on microenterprises, active in the relevant product sector. The Member States and the Commission should, in their respective areas of responsibility, provide adequate information including guidance, provide targeted and specialised training, and provide specific assistance and support, including financial support, to SMEs active in the manufacturing of products for which ecodesign requirements are set. Those actions are particularly important for product groups where the presence of SMEs is relevant. The Commission should, where appropriate, support the calculation of the product environmental footprint by providing digital tools, such as tools for life cycle assessment calculation, and support the implementation of the digital product passport. It is important that the Commission provide financial support to SMEs’ representatives, in particular those of microenterprises, to enable their effective participation in the Ecodesign Forum and that it provide easily accessible information to SMEs on available financial support and programmes. Member States’ actions should be taken in accordance with applicable State aid rules. While developing and implementing those actions, Member States can rely on the support provided by Union programmes and initiatives for SMEs.

(55)

The destruction of unsold consumer products, such as textiles and footwear, by economic operators is becoming a widespread environmental problem across the Union, in particular due to the rapid growth of online sales. It amounts to a loss of valuable economic resources as goods are produced, transported and afterwards destroyed without ever being used for their intended purpose. It is therefore necessary, in the interest of environmental protection, that this Regulation establish a framework to prevent the destruction of unsold products primarily intended for consumers, including products that have not been offered for sale or products returned by consumers on the basis of their right of withdrawal as laid down by Directive 2011/83/EU of the European Parliament and of the Council (41) or during any longer withdrawal period provided by the trader. The concept of destruction as outlined in this Regulation should cover the last three activities on the waste hierarchy, namely recycling, other recovery and disposal. Preparation for reuse, including refurbishment and remanufacturing, should not be considered destruction. Preventing destruction will reduce the environmental impact of those products by reducing the generation of waste and by disincentivising overproduction. Economic operators should take the measures necessary to prevent the need to destroy unsold consumer products. In addition, given that several Member States have introduced national legislation on the destruction of unsold consumer products thereby creating market distortions, harmonised rules on the destruction of unsold consumer products are necessary to ensure that distributors, retailers and other economic operators are subject to the same rules and incentives across Member States.

(56)

To disincentivise the destruction of unsold consumer products and to generate further data on the occurrence of this practice, this Regulation should introduce a transparency obligation for economic operators, with the exception of micro and small enterprises, requiring them to disclose information on the number and weight of unsold consumer products discarded per year at least on an easily accessible page of their website. Where applicable, they should also have the possibility of including that information in their management reports pursuant to Directive 2013/34/EU of the European Parliament and of the Council (42). The obligation should start applying to medium-sized enterprises six years after the entry into force of this Regulation. The economic operator should indicate the product type or category, the reasons for discarding the products and their delivery for subsequent waste treatment operations, as well as measures taken and measures planned to prevent the destruction of unsold consumer products.

(57)

The unnecessarily high production volumes and short use phase of textiles, of which clothing comprises the largest share of consumption in the Union, cause a significant environmental impact as described in the communication of the Commission of 30 March 2022 on an EU Strategy for Sustainable and Circular Textiles. Newly produced but unsold textiles and especially clothing are among the items reportedly being destroyed. Clothing should be given a higher value, and be worn longer and cared for more, than is the case in today’s fast fashion culture. From a circular economy perspective, such wasting of valuable resources is in clear contradiction to the objectives of this Regulation. It is therefore justified to prohibit the destruction of unsold consumer apparel and clothing accessories as well as footwear.

(58)

In order to take account of the environmental impact of the destruction of other types of unsold consumer products, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to amend this Regulation by adding new products to the list of consumer products of which the destruction by economic operators is prohibited. Given the wide range of products that may potentially be destroyed without ever being sold or used, it is necessary that the Commission assess the extent to which the destruction of such products takes place in practice, taking into account the information made available by economic operators where appropriate. To ensure that this obligation is proportionate, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to supplement this Regulation by setting out specific derogations under which destroying unsold consumer products can still be permitted, for instance in view of health and safety concerns. To monitor the effectiveness of such prohibition and to disincentivise circumvention, economic operators should be required to disclose the number and weight of unsold consumer products discarded, the reasons for discarding those products and applicable derogations. Finally, to avoid any undue administrative burden for micro and small enterprises, they should be exempted from the prohibition of destruction of specific products set in this Regulation. That prohibition should start applying to medium-sized enterprises six years after the entry into force of this Regulation. However, where there is reasonable evidence that micro and small enterprises could be used to circumvent that prohibition, the Commission should be able to require in delegated acts that the prohibition of destruction of unsold consumer products or the disclosure obligation apply to those enterprises for specific products.

(59)

Member States should not be precluded from introducing or maintaining national measures as regards the destruction of unsold consumer products for products which are not subject to the prohibition under this Regulation, provided that such measures are in line with Union law.

(60)

Based on the information disclosed by economic operators and other available evidence, the Commission should publish on its website consolidated information on the destruction of unsold consumer products and should identify in the working plan the products for which the prohibition of destruction should be considered. Electrical and electronic equipment should be considered for inclusion in the first working plan.

(61)

Economic operators should be responsible for the compliance of products with the ecodesign requirements, in relation to their respective roles in the supply chain, so as to ensure the free movement of those products on the internal market and to improve their sustainability. Economic operators intervening in the supply and distribution chain should take appropriate measures to ensure that they only make available on the market products that are in conformity with this Regulation and the delegated acts adopted pursuant to it.

(62)

Since manufacturers have detailed knowledge of the design and production process, they should be responsible for carrying out the conformity assessment procedure applicable or for having it carried out on their behalf.

(63)

In order to safeguard the functioning of the internal market, it is necessary to ensure that products from third countries entering the Union market comply with this Regulation and with the delegated acts adopted pursuant to it, whether imported as products, components or intermediate products. In particular, it is necessary to ensure that appropriate conformity assessment procedures have been carried out by manufacturers with regard to those products. Importers should therefore be required to ensure that the products they place on the market comply with those requirements and that the CE marking and documentation drawn up by manufacturers are available for inspection by the competent national authorities. Importers should also be required to ensure, where applicable, that a digital product passport is available for those products.

(64)

When placing a product on the market, importers should indicate on the product their name, registered trade name or registered trade mark as well as the postal address at which and electronic means of communication through which they can be contacted. Derogations should be provided for in cases where the size of the product does not allow for such indications or where importers would have to open the packaging to put the name and address on the product or where the product is too small in size to affix such information.

(65)

As distributors make products available on the market after those products have been placed thereon by the manufacturer or importer, they should act with due care in relation to the applicable ecodesign requirements. Distributors should also ensure that their handling of products does not adversely affect the compliance of those products with this Regulation or the delegated acts adopted pursuant to it.

(66)

As distributors and importers are close to the marketplace and have an important role in ensuring product compliance, they should be involved in market surveillance tasks carried out by the competent national authorities, and they should be prepared to participate actively, providing those authorities with all necessary information relating to the product concerned.

(67)

As dealers offer products for sale, hire or hire purchase, or display products to customers or installers, it is necessary that dealers ensure that their customers, including potential customers, can effectively access the information required under this Regulation, including in the case of distance selling. In particular, this Regulation should require dealers to ensure that the digital product passport is accessible to their customers, including potential customers, and that labels are clearly displayed, in line with the applicable requirements. Dealers should comply with that obligation every time a product is offered for sale, hire or hire purchase.

(68)

To facilitate the choice of more sustainable products, labels, where required, should be displayed in a clearly visible and identifiable way. They should be identifiable as the labels belonging to the product in question, without customers, including potential customers, having to read the brand name and model number on the labels. Labels should attract the attention of the customers browsing through the products displayed. To ensure that the labels are accessible to customers when considering a purchase, both the dealer and the responsible economic operator should display them whenever advertising the product, also in cases of distance selling, including online.

(69)

Importers or distributors that either place on the market a product covered by a delegated act adopted pursuant to this Regulation under their own name or trademark, or modify such a product before it has been put into service in such a way that compliance with this Regulation or with the relevant delegated act might be affected, should be considered to be the manufacturer and should assume the manufacturer’s obligations.

(70)

Providers of online marketplaces play a crucial role in the supply chain, allowing economic operators to reach a large number of customers. Given their important role as intermediaries between economic operators and customers in the sale of products, providers of online marketplaces should take responsibility for addressing the sale of products that do not comply with ecodesign requirements and should cooperate with market surveillance authorities. Directive 2000/31/EC of the European Parliament and of the Council (43) provides the general framework for e-commerce and lays down certain obligations for online platforms. Regulation (EU) 2022/2065 of the European Parliament and of the Council (44) regulates the responsibility and accountability of providers of intermediary services online with regard to illegal content, including products that do not comply with ecodesign requirements. Building on that general framework, specific requirements to effectively address the sale of non-compliant products online should be brought in.

(71)

It is essential that providers of online marketplaces cooperate closely with the market surveillance authorities. An obligation of cooperation with market surveillance authorities is imposed on information society service providers under Article 7(2) of Regulation (EU) 2019/1020 of the European Parliament and of the Council (45) in relation to products covered by that Regulation, including products for which ecodesign requirements are set under this Regulation. For that purpose, the general obligations as laid down under Chapter IV of Regulation (EU) 2022/2065 should apply, in particular the obligation related to compliance by design for providers of online marketplaces in Article 31 of Regulation (EU) 2022/2065. For the purposes of Article 31(3) of Regulation (EU) 2022/2065, providers of online marketplaces should make use, inter alia, of the information available in the public user interface of the information and communication system referred to in Regulation (EU) 2019/1020. Providers of online marketplaces should also cooperate with market surveillance authorities to tackle illegal content related to non-compliant products. Actions within the framework of that cooperation should include the establishment of a regular and structured exchange of information on action taken by providers of online marketplaces, including the removal of product offers. Providers of online marketplaces should also grant access to their interfaces to help market surveillance authorities to identify non-compliant products sold online. Moreover, it is possible that market surveillance authorities would also need to scrape data from online marketplaces.

(72)

Article 14 of Regulation (EU) 2019/1020 provides market surveillance authorities with the power, where no other effective means are available to eliminate a serious risk, to require the removal of content referring to non-compliant products from an online interface. The powers entrusted to market surveillance authorities by that Regulation should also apply in the context of this Regulation. However, for effective market surveillance under this Regulation and to avoid non-compliant products being present on the Union market, those powers should apply in all necessary and proportionate cases, including for products presenting a less than serious risk. Those powers should be exercised in accordance with Article 9 of Regulation (EU) 2022/2065.

(73)

Ensuring a product’s traceability throughout the whole supply chain facilitates the market surveillance authorities’ task of tracing economic operators that placed on the market or made available on the market non-compliant products. Economic operators should therefore be required to keep the information on their transactions for a certain period of time.

(74)

To speed up and facilitate the verification of compliance of products placed on the market, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to supplement this Regulation by requiring economic operators, where necessary, to make specific parts of the technical documentation digitally available both to competent national authorities and to the Commission. This would allow competent national authorities to access such information without request, while continuing to guarantee the protection of trade secrets and intellectual property rights. Possible means of making such information digitally available should as a rule include a digital product passport, or via inclusion in the compliance part of the product database referred to in Regulation (EU) 2017/1369, or on a website of the economic operator. Such an obligation should not take away from the competent national authorities’ right to access other parts of the technical documentation on request.

(75)

In order to allow for a better estimation of relevant products’ market penetration, to better inform studies feeding into the drafting or updating of ecodesign requirements and working plans, and to help identify the market share of specific product groups in order to speed up the formulation or review of ecodesign requirements, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to supplement this Regulation by requiring the collection of adequate and reliable data on the sale of products, by allowing the collection of such data by or on behalf of the Commission directly from manufacturers or retailers. When adopting rules on monitoring and reporting, the Commission should take into account the need to maximise the available data on market penetration and the need to minimise the administrative burden for economic operators, especially for SMEs.

(76)

In order to improve future ecodesign requirements and improve end users’ confidence with regard to identifying and correcting deviations between energy in-use and other performance parameters when measured under test conditions and actual functioning, the Commission should have access to non-personal data about products’ actual energy consumption while in use and where relevant to other performance parameters. To that end, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission to supplement this Regulation by requiring that individual products, similarly to road vehicles, record their consumption and other relevant performance parameters and display the related data to the end user. For products connected to the internet, the power to adopt delegated acts should be delegated to the Commission to supplement this Regulation by requiring economic operators to remotely collect non-personal in-use data and report those data to the Commission, as it is essential to identify how the products perform and to inform the public. For products whose in-use performance depends significantly also on climatic or geographical conditions, general climatic or geographical information should also be collected and reported, in a way that does not allow the specific location of individual appliances to be determined. End users should expressly agree to the collection of information that they consider is appropriate to share. Collection of information about the behaviour of appliances that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, or collection of information which could provide or which could allow the identification of individuals or the inference of their behaviour should not be allowed.

(77)

In order to help to facilitate the verification of compliance with ecodesign requirements, including to facilitate conformity assessment and market surveillance, the Commission should be empowered to require, where duly justified, that supply chain actors provide, free of charge, information on what they supply, such as the quantity and type or chemical composition of materials used or the production process employed, or information on the conditions of the provision of their services. It should also be possible to allow manufacturers to have access to the documents containing such information or to the actual facilities of the supply chain actors so that they can access directly the necessary information if the supply chain actors do not provide the information requested within a reasonable time. The Commission should also be empowered to enable notified bodies and national authorities to verify the accuracy of the information related to the activities of the supply chain actors.

(78)

In order to ensure the effective and harmonised application of ecodesign requirements set under this Regulation, including on aspects such as energy use or efficiency, durability and reliability, and recycled content, compliance with those requirements should be measured using reliable, accurate and reproducible methods that take into account the generally recognised state-of-the-art methods. Delegated acts setting ecodesign requirements for products should as a rule include the specifications for tests, measurements or calculations needed to establish or verify compliance. In addition, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to supplement this Regulation by requiring the use of digital tools reflecting applicable calculation requirements, in order to ensure their harmonised application.

(79)

In order to ensure that ecodesign requirements achieve their intended effects, this Regulation should set out comprehensive and overarching provisions which are applicable to all products covered by ecodesign requirements and prohibit the circumvention of such requirements. Therefore, any practice leading to an unjustified alteration of the product’s performance during compliance testing, or within a short period after putting the product into service, leading to a declared performance that misrepresents the product’s actual performance while in use should be prohibited.

(80)

Where appropriate, it should be possible for delegated acts setting ecodesign requirements to refer to the use of standards to establish or verify compliance. In order to ensure that there are no barriers to trade on the internal market, such standards should be harmonised at Union level. Once a reference to such standards has been adopted in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council (46) and published in the Official Journal of the European Union, products in conformity with such standards should be considered in conformity with ecodesign requirements adopted pursuant to this Regulation to the extent that they are covered by the relevant harmonised standards. Similarly, methods for tests, measurement or calculation that are in conformity with harmonised standards should be considered in conformity with the requirements for test, measurement and calculation methods set out in the relevant delegated acts laying down ecodesign requirements, to the extent that they are covered by the relevant harmonised standards.

(81)

The current Union standardisation framework, which is based on the New Approach principles set out in Council Resolution of 7 May 1985 on a new approach to technical harmonization and standards (47) and on Regulation (EU) No 1025/2012, represents the framework by default to elaborate standards that provide for a presumption of conformity with the relevant requirements set out in this Regulation. In the absence of relevant references to harmonised standards, the Commission should be able to adopt implementing acts establishing common specifications as an exceptional fall-back solution to facilitate compliance with ecodesign requirements by the manufacturer, for instance when the standardisation process is blocked due to a lack of consensus between stakeholders or where there are delays in establishing a harmonised standard and the prescribed deadline cannot be respected. Such delays could for example occur when the required quality is not reached. In addition, recourse to this solution should be possible where the Commission has restricted or withdrawn the references to relevant harmonised standards in line with Regulation (EU) No 1025/2012. Compliance with common specifications should also give rise to the presumption of conformity. In order to ensure efficiency, the Commission should involve relevant stakeholders in the process of establishing the common specifications that cover the ecodesign requirements adopted pursuant to this Regulation.

(82)

In order to enable economic operators to demonstrate, and competent authorities to verify, that products made available on the market comply with the ecodesign requirements adopted pursuant to this Regulation, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to supplement this Regulation by laying down conformity assessment procedures that are appropriate and proportionate to the nature of the product concerned and of the product parameters regulated. To ensure consistency with other Union law, the conformity assessment procedures should be chosen from among those of the internal production control module included in this Regulation and of the modules included in Decision No 768/2008/EC of the European Parliament and of the Council (48), ranging from the least stringent to the most stringent. To further ensure that the applicable module is appropriate and proportionate to the nature of the product concerned and of the product parameters regulated, the Commission should, where necessary, adapt the module chosen accordingly.

(83)

Manufacturers should draw up an EU declaration of conformity to provide information on the conformity of products with this Regulation. Manufacturers could also be required by other Union law to draw up an EU declaration of conformity. To ensure effective access to information for market surveillance purposes, a single EU declaration of conformity should be drawn up in respect of all Union law. To reduce the administrative burden on economic operators, it should be possible for that single EU declaration of conformity to be a dossier made up of relevant individual EU declarations of conformity.

(84)

Regulation (EC) No 765/2008 of the European Parliament and of the Council (49) lays down rules on the accreditation of conformity assessment bodies and sets out general principles governing the CE marking and its relationship to other markings. That Regulation should be applicable to products covered by this Regulation in order to ensure that products benefiting from the free movement of goods within the Union fulfil requirements providing a high level of protection of public interests such as human health, safety and the environment. Where ecodesign requirements have been adopted for a product, the CE marking should indicate that product’s conformity with this Regulation and the ecodesign requirements adopted pursuant to it, insofar as they relate to the product. Considering that this Regulation provides for the setting of ecodesign requirements for a large range of products, the delegated acts setting those requirements should set out rules on conformity marking in relation to ecodesign requirements in order to ensure consistency with requirements under Union law applicable to the products covered, prevent confusion with other markings and minimise the administrative burden on economic operators.

(85)

Some of the conformity assessment modules laid down in Decision No 768/2008/EC require the intervention of conformity assessment bodies. In order to ensure uniform conditions for the implementation of this Regulation, those bodies should be notified to the Commission by Member State authorities.

(86)

To ensure a consistent level of quality in the performance of conformity assessment, it is necessary to set requirements for notifying authorities involved in the assessment, notification and monitoring of notified bodies. In particular, Member States should ensure that the notifying authority is objective and impartial with regard to its activity. Furthermore, notifying authorities should be required to safeguard the confidentiality of the information they obtain, but should nonetheless be able to exchange information on notified bodies with national authorities, the notifying authorities of other Member States and the Commission to ensure consistency in the conformity assessment. To effectively establish and monitor the competence and independence of applicant bodies, notifying authorities should assess only the specific legal body applying for notification, not taking into account the credentials of parent or sister companies. For the same reason, notifying authorities should assess applicant bodies in relation to all relevant requirements and conformity assessment tasks, relying on harmonised standards for the requirements and tasks covered by those standards.

(87)

Given their central role in ensuring the reliability of conformity assessments in relation to ecodesign requirements, it is essential that notifying authorities have a sufficient number of competent personnel and sufficient funding at their disposal for the proper performance of their tasks.

(88)

It is essential that all notified bodies perform their functions to the same level and under conditions of equal competition and autonomy. Therefore, requirements should be set for conformity assessment bodies wishing to obtain the status of notified body in order to provide conformity assessment activities. Those requirements should continue to apply in order to ensure that the competence of the notified body is maintained. To ensure its autonomy, the notified body and the staff it employs should be required to maintain independence from economic operators in the value chain of the products in relation to which it has been notified and from other companies, including business associations and parent and sister companies, subsidiaries and subcontractors.

(89)

If a conformity assessment body demonstrates conformity with the criteria laid down in harmonised standards, it should be presumed to comply with the corresponding requirements set out in this Regulation.

(90)

Conformity assessment bodies frequently subcontract parts of their activities linked to the assessment of conformity or have recourse to a subsidiary. To ensure that products placed on the Union market comply with ecodesign requirements, conformity assessment subcontractors and subsidiaries should fulfil the same requirements as notified bodies in relation to the performance of conformity assessment tasks under this Regulation. To ensure that that is the case, relevant notified bodies should establish procedures for the on-going monitoring of the competence, activities and performance of their subcontractors or subsidiaries, such as through a qualification matrix.

(91)

In order for notifying authorities to establish and monitor the competence and independence of applicant bodies effectively, the notified bodies should be and remain autonomous. Therefore, certain activities and decision-making processes, both regarding the conformity assessment of products and other activities internal to the notified body, should exclusively be carried out by the individual notified body itself.

(92)

To facilitate the process of establishing and monitoring the competence and independence of applicant bodies, applicant bodies should provide a description of how their relevant personnel and the status and tasks of those personnel correspond to the conformity assessment tasks in relation to which those bodies intend to be notified, such as in the form of a qualification matrix, thereby enabling the notifying authority to more effectively assess the adequacy of staffing and the continued autonomy of the notified bodies. Notified bodies should ensure that the personnel carrying out different conformity assessment tasks are rotated.

(93)

Since the services offered by notified bodies in a Member State might relate to products made available on the market throughout the Union, it is appropriate to give the other Member States and the Commission the opportunity to raise objections concerning a notified body.

(94)

In the interests of facilitating and accelerating the conformity assessment procedure, and to ensure equal treatment of economic operators, it is crucial that the notified bodies apply the conformity assessment procedures consistently and without creating an unnecessary burden for economic operators.

(95)

Prior to taking a final decision on whether a product can be granted a conformity certificate, the economic operator that wishes to place that product on the market should be allowed to supplement the relevant documentation only once. This limitation is necessary to ensure that notified bodies are not able to assist manufacturers in making changes until conformity is achieved, as that would mean that the service provided resembles a consulting service and could in practice dilute the public interest nature of notified bodies’ tasks. Where appropriate, notified bodies should also be able to restrict, suspend or withdraw any certificates or approval decisions.

(96)

To facilitate the identification and resolution of cases of non-conformity of notified bodies, manufacturers or products, notified bodies should proactively forward relevant information at their disposal to notifying authorities or market surveillance authorities.

(97)

It is essential to ensure efficient exchange of information between notified bodies and market surveillance authorities, including from other Member States. To that end, notifying authorities and notified bodies should ensure follow-up to requests for information from market surveillance authorities.

(98)

The Commission should enable appropriate coordination and cooperation between notified bodies. To ensure harmonised application of ecodesign requirements, notified bodies should discuss and coordinate on topics of possible divergence. In that process, they should take into account any relevant guidance and recommendations issued by the competent technical committees of the European standardisation bodies.

(99)

In order to incentivise consumers to make sustainable choices, in particular when the most sustainable products are not affordable enough, mechanisms such as eco-vouchers and green taxation could be provided for. When Member States decide to make use of incentives to reward the best-performing products, they should do so by targeting those incentives at the highest two populated classes of performance that were set by the delegated acts adopted pursuant to this Regulation, not necessarily taken cumulatively, in the event that classes of performance are set in relation to more than one parameter. For energy-related products covered by Regulation (EU) 2017/1369 or for tyres covered by labelling requirements with regard to fuel efficiency and other parameters under Regulation (EU) 2020/740 of the European Parliament and of the Council (50), the criteria set under those two instruments should apply instead of those under this Regulation. However, Member States should not be able to prohibit the placing on the market of a product based on its class of performance. The introduction of Member State incentives should be without prejudice to the application of the Union’s State aid rules.

(100)

Public procurement amounts to 14 % of the Union’s GDP. To contribute to the objective of reaching climate neutrality, improving energy and resource efficiency and transitioning to a circular economy that protects public health and biodiversity, by ensuring that there is sufficient demand for more environmentally sustainable products, contracting authorities and contracting entities should, where appropriate, align their procurement with specific green public procurement requirements. Compared to a voluntary approach, mandatory green public procurement requirements will ensure that the leverage of public spending to boost demand for better performing products is maximised. It is important that Member States provide assistance to national contracting authorities to upskill and reskill staff in charge of green public procurement. Those green public procurement requirements should be minimum requirements, meaning that contracting authorities and contracting entities should be able to set additional and more demanding requirements. Those requirements should be transparent, objective and non-discriminatory. The public procurement procedure should be conducted by contracting authorities and contracting entities in compliance with Directives 2014/24/EU (51) and 2014/25/EU (52) of the European Parliament and of the Council, and applicable sectoral legislation, as well as with the Union’s international commitments, including the Government Procurement Agreement and other international agreements by which the Union is bound. Those requirements are without prejudice to the possibility for contracting authorities and contracting entities to rely on derogations or exemptions regarding public contracts set out in Union law, in particular Directives 2014/24/EU and 2014/25/EU. The requirements set for specific product groups should be complied with not only when directly procuring those products in public supply contracts but also in public works or public services contracts, where those products will be used for activities constituting the subject matter of those contracts. Those requirements should be set in relation to the product aspects addressed in the delegated act regulating the products in question. As part of those requirements, the Commission might set out minimum mandatory technical specifications requiring products to comply with the best possible performance levels as set out in the relevant delegated acts, including where available with the two highest classes of performance or scores. As a result, for example, it would be mandatory for contracting authorities and contracting entities to require that the tenderers’ products meet specific carbon footprint requirements. In compliance with the public procurement framework, those minimum mandatory technical specifications should avoid artificially restricting competition and avoid favouring a specific economic operator. The Commission might also set up minimum mandatory award criteria including assigning a specific weighting, between 15 % and 30 %, to those criteria for the purpose of ensuring that they can significantly influence the choice of products in favour of those that are the most environmentally sustainable. As a result, for example, it would be mandatory for contracting authorities and contracting entities to give the recycled content of the products in question a minimum weighting between 20 % and 30 %. As a consequence, contracting authorities and contracting entities, in the specific award procedure, would have the possibility of assigning a weighting higher than 30 %, but not lower than 20 % to recycled content. Award criteria should be preferred to technical specifications when there are uncertainties about the availability or cost of the best performing products in the Union market. The Commission might also set contract performance conditions and targets according to which, for instance, contracting authorities and contracting entities should award at least 50 % of their annual procurement of certain products to those with more than 70 % of recyclable material. As a result, Member States could still set higher targets for the procurement of those products. When developing implementing acts and in particular when considering the economic feasibility for contracting authorities and contracting entities, the Commission should take into account the best possible environmental products and solutions available on the market, the effects of the requirements on competition and the fact that different contracting authorities and contracting entities in different Member States might have different budgetary capacities or other constraints such as with regard to climate conditions or network infrastructure.

(101)

Member States should not be precluded from introducing or maintaining national measures on green public procurement regarding product groups for which public procurement requirements under this Regulation have not yet been set, or from introducing stricter national requirements regarding products which fall within the scope of implementing acts setting out green public procurement requirements, provided such measures and requirements are in line with Union law.

(102)

Effective enforcement of ecodesign requirements is essential to ensure equal competition in the Union market and to ensure that this Regulation’s expected benefits and contribution to achieving the Union’s climate, energy and circularity objectives are achieved. Therefore, Regulation (EU) 2019/1020, which sets out a horizontal framework for market surveillance and control of products entering the Union market, should apply to products for which ecodesign requirements are set pursuant to this Regulation, insofar as there are no specific provisions with the same objective, nature or effect in this Regulation. In addition, to lower the problematic levels of non-compliance of products covered by implementing measures adopted under Directive 2009/125/EC, to more effectively prevent non-compliance with future ecodesign requirements, and taking account of the broader scope and increased ambition of this Regulation compared to Directive 2009/125/EC, this Regulation should contain specific additional rules complementing the framework created by Regulation (EU) 2019/1020. Those rules should be aimed at further strengthening the planning, coordination and support of Member State efforts and should provide additional tools for the Commission to help ensure sufficient action is taken by market surveillance authorities to prevent non-compliance with ecodesign requirements.

(103)

Besides market surveillance authorities, customs authorities also have an important role to play in enforcing this Regulation with regard to imported goods and can rely on Council Regulation (EC) No 515/97 (53) for that purpose.

(104)

To ensure that appropriate checks are performed on an adequate scale in relation to ecodesign requirements, in their national market surveillance strategy provided for in Article 13 of Regulation (EU) 2019/1020, Member States should draw up a dedicated section listing the products or requirements they have identified as priorities for market surveillance under this Regulation and the activities planned to reduce or bring to an end non-compliance of relevant products with relevant ecodesign requirements.

(105)

Priorities for market surveillance under this Regulation should be identified based on objective criteria such as the levels of non-compliance observed or the environmental impacts resulting from non-compliance. The activities planned to address those priorities should, in turn, be proportionate to the facts leading to their prioritisation.

(106)

Based on data entered into the information and communication system referred to in Regulation (EU) 2019/1020, the Commission should draw up a report containing information on the nature and number of checks performed, on the levels of non-compliance identified and on the nature and severity of penalties imposed in relation to non-compliance with ecodesign requirements over the four preceding calendar years. The report should contain a comparison of Member States’ activities with the activities planned, indicative benchmarks and a list of priorities for market surveillance authorities. When considering the adoption of implementing acts in accordance with Article 11(4) of Regulation (EU) 2019/1020, the Commission should take into account the results of the reports that it has drawn up pursuant to this Regulation on the basis of the information entered by market surveillance authorities into the information and communication system referred to in Regulation (EU) 2019/1020, and should address, as appropriate, the products or product groups covered by delegated acts adopted pursuant to this Regulation, in relation to which specific risks or serious breaches have been continuously identified, in order to ensure a high level of compliance with this Regulation.

(107)

To further strengthen coordination of market surveillance authorities, the administrative cooperation group (‘ADCO’) set up pursuant to Regulation (EU) 2019/1020 should, for the purposes of identifying the products or requirements identified as priorities for market surveillance under this Regulation and the activities planned to reduce or bring to an end non-compliance with this Regulation, meet at regular intervals and identify common priorities for market surveillance to be taken into account in Member States’ national market surveillance strategies, priorities for the provision of Union support, and requirements adopted pursuant to this Regulation that are applied or interpreted differently, thus leading to market distortion.

(108)

To support Member States in their efforts to ensure sufficient action is taken to prevent non-compliance with ecodesign requirements, the Commission should, where relevant, make use of the support measures provided for in Regulation (EU) 2019/1020. The Commission should organise and, where appropriate, finance joint market surveillance and testing projects in areas of common interest, joint investments in market surveillance capacities and common training programmes for the staff of market surveillance authorities, customs authorities, notifying authorities and notified bodies. In addition, the Commission should draw up guidelines on how to apply and enforce requirements adopted pursuant to this Regulation where necessary to ensure their harmonised application.

(109)

Products should be placed on the market only if they do not present a risk. In order to better align with the specific nature of ecodesign requirements and to ensure that the focus of market surveillance efforts is on non-compliance with such requirements, a product presenting a risk should, for the purposes of this Regulation, be defined as a product that, by not complying with an ecodesign requirement or because a responsible economic operator does not comply with an ecodesign requirement, could adversely affect the environment or other public interests protected by that requirement. That more specific definition should be used when applying Articles 19 and 20 of Regulation (EU) 2019/1020.

(110)

A procedure should exist under which interested parties are informed of measures intended to be taken with regard to products presenting a risk. It should also allow market surveillance authorities in the Member States, in cooperation with the relevant economic operators, to act at an early stage with regard to such products. To that end, the safeguard clause currently included in Directive 2009/125/EC should be updated and aligned with the safeguard procedures included in other Union harmonisation legislation and in Decision No 768/2008/EC.

(111)

The market surveillance authorities should have the right to require economic operators to take corrective action on the basis of findings that either a product is not compliant with ecodesign requirements or that the economic operator has infringed the rules on the placing or making available on the market of products or other rules addressed to it.

(112)

When adopting delegated acts pursuant to Article 290 TFEU, it is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (54). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(113)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards: (a) establishing procedures to issue and verify the digital credentials for access to the data stored in the digital product passport by economic operators and other relevant actors based on their respective rights; (b) specifying implementation arrangements for the interconnection of the registry and the EU Customs Single Window Certificates Exchange System, including the communication of the unique registration identifier; (c) establishing common requirements for the layout of labels; (d) adopting and updating a list of self-regulation measures established as valid alternatives to a delegated act adopted pursuant this Regulation; (e) setting out the details and format for the disclosure of the information on unsold consumer products that have been discarded; (f) establishing, amending or repealing common specifications covering ecodesign requirements, the essential requirements for digital product passports or the requirements for test, measurement or calculation methods; (g) setting minimum requirements for the award of public contracts for the purchase of products covered by ecodesign requirements, or for works or services where those products are used for activities constituting the subject matter of those contracts and (h) deciding, pursuant to the Union safeguard procedure, whether a national measure is justified or not. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (55).

(114)

To enhance trust in products placed on the market, in particular as regards the compliance of products with ecodesign requirements, the public needs to be sure that economic operators placing non-compliant products on the market will be subject to penalties. It is therefore necessary that Member States lay down rules on penalties applicable to infringements of this Regulation and ensure that those rules are implemented. The penalties provided for should be effective, proportionate and dissuasive and should at least include fines and time-limited exclusion from public procurement procedures. Without prejudice to Member States’ procedural autonomy and to the discretion of competent authorities and judges to impose appropriate penalties in the individual cases, common non-exhaustive criteria should be established for determining the types and levels of penalties to be imposed in the event of infringements of this Regulation, to facilitate more consistent application of penalties. Those criteria should include, inter alia, the nature, gravity and duration of the infringement, the financial situation of the natural or legal person held responsible, as indicated for example by the total turnover or the annual income, and the economic benefits derived from and generated by the infringement, insofar as those benefits can be determined.

(115)

The Commission should carry out an evaluation of this Regulation. Pursuant to paragraph 22 of the Interinstitutional Agreement on Better Law-Making, that evaluation should be based on the five criteria of efficiency, effectiveness, relevance, coherence and value added and should provide the basis for impact assessments of possible further measures. The Commission should submit to the European Parliament, to the Council, to the European Economic and Social Committee, and to the Committee of the Regions a report on the implementation of this Regulation and its impact on the environmental sustainability of products and the functioning of the internal market. Where appropriate, the report should be accompanied by a proposal to amend this Regulation.

(116)

It is appropriate that the Commission assess the potential benefits of setting requirements also in relation to social aspects of products. As part of that assessment, the Commission should consider to what extent those requirements could complement Union law, thereby addressing adverse impacts on human and social rights arising from companies’ operations and from products. The Commission should therefore carry out an evaluation within four years of the date of entry into force of this Regulation on the potential benefits of inclusion of social sustainability requirements within the scope of this Regulation. The Commission should submit to the European Parliament, to the Council, the European Economic and Social Committee, and to the Committee of the Regions a report on the evaluation. Where appropriate, the report should be accompanied by a legislative proposal to amend this Regulation.

(117)

To facilitate private enforcement of this Regulation, consumers who have suffered damage due to the non-compliance of a product with ecodesign requirements should have the right to claim compensation for that damage from the product’s manufacturer or, if the manufacturer is not established in the Union, the importer or the authorised representative of the manufacturer, or, if none of those economic operators is established in the Union, the fulfilment service provider. Such right to compensation should be without prejudice to other remedies available to consumers under Union law, such as the remedies against the seller in the event of a lack of conformity of the goods sold, in accordance with Directive (EU) 2019/771 of the European Parliament and of the Council (56). Furthermore, Member States should not be prevented from maintaining or introducing rights for consumers to other remedies in accordance with national law, such as the repair or replacement of products infringing ecodesign requirements.

(118)

Consumers should be entitled to enforce their rights in relation to the obligations imposed on manufacturers and, where applicable, importers, authorised representatives and fulfilment service providers under this Regulation through representative actions in accordance with Directive (EU) 2020/1828 of the European Parliament and of the Council (57). For that purpose, this Regulation should provide that Directive (EU) 2020/1828 is applicable to representative actions concerning infringements of this Regulation by manufacturers and, where applicable, by importers, authorised representatives and fulfilment service providers that qualify as traders under Article 3, point (2), of that Directive which harm or could harm the collective interests of consumers. Annex I to that Directive should therefore be amended accordingly. It is for the Member States to ensure that that amendment is reflected in their transposition measures adopted in accordance with that Directive, although the adoption of national transposition measures in that regard is not a condition for the applicability of that Directive to those representative actions. The applicability of that Directive to the representative actions brought against infringements by manufacturers and, where applicable, by importers, authorised representatives and fulfilment service providers of provisions of this Regulation which harm or could harm the collective interests of consumers should start from the date of entry into force of this Regulation.

(119)

It is necessary that ecodesign requirements apply to the widest possible range of products, and not only to energy-related products, and that the definition of ecodesign requirements is widened to encompass all aspects of circularity. It is also necessary to align this Regulation to the New Legislative Framework set out in Regulation (EC) No 765/2008 and Decision No 768/2008/EC, and to improve the provisions related to market surveillance. Directive 2009/125/EC should therefore be replaced. In order to ensure legal certainty for all economic operators from the date of entry into force of this Regulation and to guarantee a level playing-field for businesses operating on the internal market, the provisions setting out transparency obligations related to the discarding of unsold consumer products, circumvention, and market surveillance should be of uniform application for all operators across the Union. Directive 2009/125/EC should therefore be replaced by a Regulation.

(120)

The Ecodesign and Energy Labelling Working Plan 2022-2024, set out in the Communication of the Commission of 4 May 2022, identified the political priorities for work on energy-related products. When the provisions of this Regulation take effect, preparatory work assessing the feasibility of ecodesign requirements pursuant to Directive 2009/125/EC will be at a substantially advanced stage for photovoltaic panels, space and combination heaters, water heaters, solid fuel local space heaters, air conditioners including air-to-air heat pumps and comfort fans, solid fuel boilers, air heating and cooling products, ventilation units, vacuum cleaners, cooking appliances, water pumps, industrial fans, circulators, external power supplies, computers, servers and data storage products, power transformers, professional refrigeration equipment and imaging equipment. Thanks to that preparatory work, numerous areas where energy and material can be saved have been identified, and extensive consultations of citizens and stakeholders have taken place. Restarting that preparatory work under this Regulation would considerably delay the adoption of requirements concerning energy and material savings for those products. In order to ensure that the preparatory work is not lost, it is therefore necessary to provide for transitional rules allowing implementing measures on those products to be adopted pursuant to Directive 2009/125/EC by 31 December 2026. In addition, and in order to ensure the proper functioning of implementing measures adopted under Article 15 of Directive 2009/125/EC, necessary amendments addressing technical issues should be adopted if relevant in accordance with the relevant provisions of that Directive by 31 December 2030.

(121)

In order to ensure legal certainty and continuity for products placed on the market or put into service in conformity with implementing measures adopted pursuant to Directive 2009/125/EC, in its version applicable on the date of entry into force of this Regulation, those measures should remain in force beyond that date, and until repealed by a delegated act adopted pursuant to this Regulation. For the same reasons, a number of provisions of Directive 2009/125/EC should continue to have full effect in the context of applying those implementing measures. This concerns in particular provisions of Directive 2009/125/EC excluding means of transport for goods or persons from its scope, establishing definitions relevant for implementing measures, setting economic operators’ responsibilities in relation to products placed on the market, specifying the details of the relevant conformity assessment procedures and the EC declaration of conformity, establishing a presumption of conformity for products which have been awarded the EU Ecolabel and enabling necessary action in relation to harmonised standards. Given the importance of ensuring the free movement of goods, banning practices illegally altering products’ performance in order to reach a more favourable result and ensuring proper enforcement of ecodesign requirements, relevant provisions of this Regulation should be applicable to energy-related products placed on the market pursuant to implementing measures under Directive 2009/125/EC.

(122)

Since the objectives of this Regulation, namely to improve the environmental sustainability of products and to ensure the free movement in the internal market of products for which ecodesign requirements are set, cannot be sufficiently achieved by the Member States, but can rather, by reason of their scale and effects, only be achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives,